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Resolution No. 12-17 CITY OF TIGARD, OREGON TIGARD CITY COUNCIL RESOLUTION NO. 12-)"7 A RESOLUTION OF THE CITY COUNCIL APPROVING AN AGREEMENT WITH CLEAN WATER SERVICES TO ESTABLISH A CITY PLAN DISTRICT ASSOCIATED WITH THE DURHAM ADVANCED WASTEWATER TREATMENT FACILITIES. WHEREAS,ORS 190.003 - 190.110 encourages intergovernmental cooperation and authorizes local governments to delegate to each other authority to perform their respective functions as necessary;and WHEREAS,City of Tigard and CWS intend to jointly undertake establishment of a City plan district specific to the area in which CWS's Durham Advanced Wastewater Treatment Facility (Durham Facility) is located;and WHEREAS,the Durham Facility represents a highly specialized series of land uses, serving not only City users but region-wide users,necessitating careful consideration of the effects of the Durham Facility Plan District on both the City and other communities that are within CWS's jurisdiction;and WHEREAS, the current zoning status impedes CWS's ability to plan for, finance and construct necessary improvements in order to operate the Durham Facility in an efficient,cost-effective manner,meeting environmental and technical standards and serving communities in a manner consistent with their growth management plans;and WHEREAS,the City of Tigard is likewise concerned that under current zoning,it may be unable to approve upgrades or expansions at the Durham Facility that would serve public interests;and WHEREAS,the City of Tigard and Clean Water Services anticipate that a site-specific plan district will establish a mechanism allowing the City and CWS to focus and balance the relevant factors uniquely associated with the Durham Facility's operations and needs,as well as those of the City. NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: The agreement attached as Exhibit A to this resolution is hereby approved, and the City Manager is authorized to sign the agreement documents. SECTION 2: This resoluti is effective ' ediately upon passage. PASSED: This day of 52012. -City of Tigar A trunci,l^Pms"rE City Recorder-City of Tigard RESOLUTION NO. 12 Page 1 Exhibit A to Resolution No. 12-i2 INTERGOVERNMENTAL AGREEMENT BETWEEN CLEAN WATER SERVICES AND THE CITY OF TIGARD TO ESTABLISH A CITY PLAN DISTRICT ASSOCIATED WITH THE DURHAM ADVANCED WASTEWATER TREATMENT FACILITIES This Agreement dated 2012, is between Clean Water Services (CWS) a county service district organized under ORS Chapter 451 and the City of Tigard, Oregon (City)an Oregon municipality. A. RECITALS 1. ORS 190.003 - 190.110 encourages intergovernmental cooperation and authorizes local governments to delegate to each other authority to perform their respective functions as necessary. 2. City and CWS intend to jointly undertake establishment of a City plan district specific to the area in which CWS's Durham Advanced Wastewater Treatment Facility (Durham Facility) is located. 3. The Durham Facility represents a highly specialized series of land uses, serving not only City users but region-wide users. While located within the City,the Durham Facility's operations, capabilities and regulatory compliance have significant effects beyond the City, necessitating careful consideration of the effects of the Durham Facility Plan District on both the City and other communities that are within CWS's jurisdiction. Its operation affects Washington County communities other than just the City. 4. Presently,the Durham Facility is located in multiple City land use zones. Modification, upgrade, and expansion of the Durham Facility must be consistent with the standards of each of the applicable zones. The current zoning status impedes CWS's ability to plan for, finance and construct necessary improvements in order to operate the Durham Facility in an efficient, cost-effective manner, meeting environmental and technical standards and serving communities in a manner consistent with their growth management plans. The City is likewise concerned that under current zoning, it may be unable to approve upgrades or expansions at the Durham Facility that would serve local and regional public interests. 5. The parties anticipate that a site-specific plan district will establish a mechanism allowing the City and CWS to focus and balance the relevant factors uniquely associated with the Durham Facility's operations and needs, as well as those of the region and the City. 6. The parties intend this intergovernmental agreement as a coordination tool to accomplish a project of limited scope and duration. This Agreement is not intended to affect the terms or obligations of either party, as specified in the IGA between the City and CWS dated January 25, 2005, and all amendments thereto. Intergovernmental Agreement Clean Water Services and City of Tigard Page 1 of 5 NOW, THEREFORE, the parties do mutually agree as follows: B. SPECIAL TERMS 1. Cooperation. The City and CWS agree to work diligently and cooperatively in developing policies, standards and guidelines for a"Durham Advanced Wastewater Treatment Facility" Plan District (Durham Facility Plan District or Plan District), consistent with this Agreement, including the above Recitals and below-stated Purposes. Preliminarily, the proposed Plan District is intended to cover the geographic area outlined in the attached Exhibit A. The City and CWS recognize that the Plan District cannot be finalized and implemented until the City adopts the Plan District as amendments to its Comprehensive Plan and/or the Community Development Code ("CDC").. 2. Concurrent Activities. While the City is undertaking the preparation,processing and adoption of amendments to the Comprehensive Plan and/or CDC to specifically authorize the creation of plan districts within the City, the parties will proceed concurrently with the discussion and drafting of the standards for the Durham Facility Plan District. The intent is to develop the Plan District standards for consideration by the City Planning Commission and City Council and by the CWS Board of Directors, concurrently with the development and adoption of the authorizing Comprehensive Plan and/or CDC amendments. 3. Purposes of Durham Facility Plan District. The Durham Facility Plan District is intended to provide standards while preserving CWS's flexibility in the operation, modification, up- grade and expansion of the Durham Facility. The City and CWS desire to establish through the Durham Facility Plan District a single framework and process allowing for the following: a. the expansion of the Durham Facility to accommodate future urban growth or enhanced wastewater treatment capability; b. the adaptation of the Durham Facility to satisfy changes in environmental or regulatory standards and to incorporate technological advances or new methodologies in: wastewater treatment; waste-handling and processing; and wastewater, energy, and nutrient recovery; C. avoidance, management, and/or mitigation of negative off-site impacts on land uses adjacent to the Durham Facility, recognizing that certain impacts are inherent in the operation of a regional wastewater treatment facility and that such impacts should be balanced with the overall community benefit such facilities provide; d. addressing transportation system impacts from future changes at the Durham Facility; e. the creation of specific land use and permitting processes for the Durham Facility that will allow permit issuance on a timely basis; and f. the regulation of land uses, site and building design and environmental impacts from new development within the Durham Facility Plan District, taking into account the specialized operational requirements and the regional service nature of the Durham Facility. 4. Schedule of Tasks and Responsibilities. The specific tasks and responsibilities for Intergovernmental Agreement Clean Water Services and City of Tigard Page 2 of 5 undertaking and completing the tasks associated with the preparation and establishment of the Durham Facility Plan District, along with a timeline for their accomplishment, are set forth in the attached Exhibit B. The schedule may be modified as the need arises, as specified in section C.1. The parties commit to proceeding with the scheduled tasks in a prompt, cooperative, and diligent manner. 5. Public Process. The Durham Facility Plan District shall be reviewed by the City following a public outreach and hearing process that complies with City Development Code §18.390.060. The City shall be designated as the "Applicant." 6. Public Outreach. The City and CWS agree that public outreach is a key component to establishing and implementing the Durham Facility Plan District. CWS staff will be the primary lead for public outreach activities, with particular roles for City and CWS staff addressed in the attached Exhibit B. 7. Drafting Responsibilities. Consistent with Exhibit B, City Community Development Department staff will engage in a collaborative process with CWS that includes exchanges of information, concepts and proposals regarding the Plan District. From this process, City staff will prepare the initial draft for the Plan District. Upon provision of the initial draft of the Plan District to CWS, the City and CWS shall engage in further collaboration in order to reach a draft Plan District ordinance that is mutually acceptable to the parties (to include the CWS Board of Directors), for recommendation to the City Planning Commission and City Council for adoption. 8. Cost-Sharing. As its financial contribution to the tasks to be undertaken by the City under the attached Exhibit B, CWS agrees to pay an amount based upon the City's direct costs for such activities. Budgeted categories for such direct costs are estimated in the attached Exhibit C. Payments by CWS to the City shall not exceed the amounts set forth in Exhibit C, and shall be paid on a time and materials basis upon the City's completion of each task included in Exhibit C. 9. Withdrawal from Plan District Process. Because the adoption of the Durham Facility Plan District is legislative in nature, the City cannot commit to a specific outcome of the process. Accordingly, either the City or CWS may withdraw from the Durham Facility Plan District process but only after making good faith efforts to reach mutual agreement with the other party on the content, operation and effect of the Durham Facility Plan District. Before a withdrawal can occur, the City Manager and CWS's General Manager shall confer,with the objective of resolving any issues associated with a proposed withdrawal. CWS's withdrawal will not affect the City's right to retain the amounts paid by CWS under Exhibit C. If either party withdraws, both parties shall retain all legal rights that they presently hold relating to processes or activities concerning Durham Facility operations, modification or expansion. C. GENERAL TERMS 1. Amendment of Agreement. This Agreement may be amended only by mutual written agreement of the parties. 2. Indemnification Clause. Within the limits of the Oregon Tort Claims Act, codified at ORS 30.260 through 30.300,each of the parties shall indemnify and defend the others and their officers, employees, agents,and representatives from and against all claims,demands,penalties, and causes of action of any kind or character relating to or arising from this Agreement(including the cost of defense Intergovernmental Agreement Clean Water Services and City of Tigard Page 3 of 5 thereof, including attorney fees) in favor of any person on account of personal injury, death,damage of property, or violation of law,which arises out of,or results from,the negligent or other legally culpable acts or omissions of the indemnitor, its employees, agents, contractors or representatives. 3. Resolution of Disputes. If any dispute arising out of this Agreement cannot be resolved by the project managers from each party, the City Manager and CWS General Manager will attempt to resolve the issue. If the City Manager and CWS General Manager are not able to resolve the dispute, the parties will submit the matter to mediation, each party paying its own costs and sharing equally in common costs. In the event the dispute is not resolved in mediation, the parties will submit the matter to arbitration with the Arbitration Services of Portland . The decision of the arbitrator shall be final, binding and conclusive upon the parties and subject to appeal only as otherwise provided by Oregon law. The process described in this section does not limit the rights afforded the parties under section B.9 of this Agreement. 4. Laws and Regulations. City and CWS agree to abide by all applicable laws and regulations. 5. Integration. Subject to the performance and completion of the tasks described in Exhibit B, this document constitutes the entire agreement between the parties on the subject matter hereof and supersedes all prior or contemporaneous written or oral understandings, representations or communications of every kind on the subject. No course of dealing between the parties and no usage of trade shall be relevant to supplement any term used in this Agreement. Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement and no waiver by a party of any right under this Agreement shall prejudice the waiving party's exercise of the right in the future. 6. Attorney. If any dispute arises concerning the interpretation or enforcement of this Agreement, the prevailing party in any such dispute shall be entitled to recover all of its attorney fees, paralegal fees, costs, disbursements and other expenses from the nonprevailing party, including without limitation those arising before and at any trial, arbitration, bankruptcy, or other proceeding and in any appeal. 7. Term of Agreement. This Agreement is effective from the date of execution by both parties. The Agreement shall terminate upon adoption of the Plan District by the Tigard City Council, except as otherwise provided for in this Agreement. 8. Termination. This Agreement may be terminated by mutual written agreement of the parties, or by withdrawal of a party pursuant to section B.9 of this Agreement. 9. Interpretation of Agreement. a. This Agreement shall not be construed for or against any party by reason of the authorship or alleged authorship of any provision. b. The paragraph headings contained in this Agreement are for ease of reference only and shall not be used in constructing or interpreting this Agreement. Intergovernmental Agreement Clean Water Services and City of Tigard Page 4 of 5 10. Severability/Survival. If any of the provisions contained in this Agreement are held illegal, invalid or unenforceable, the enforceability of the remaining provisions shall not be impaired. All provisions concerning the limitation of liability, indemnity and conflicts of interest shall survive the termination of this Agreement for any cause. 11. Approval Required. This Agreement and all amendments shall become effective when approved by 1) CWS's General Manager or the General Manager's designee and, when required by applicable CWS rules, CWS's Board of Directors and 2) the City Council and the City Manager. 12. Choice of Law/Venue. This Agreement and all rights, obligations and disputes arising out of the Agreement shall be governed by Oregon law. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first written above. CITY OF TIGARD, OREGON CLEAN WATER SERVICES By: By: Marty Wine, City Manager Bill Gaff, General Manager APPROVED AS TO FORM APPROVED AS TO FORM City Attorney CWS Counsel APPROVED AS TO THE WAIVER OF CITY CODE §18.390.060B Community Development Director Intergovernmental Agreement Clean Water Services and City of Tigard Page 5 of 5 NMI 11 City of Tigard �► I/� L■ X111111 Proposed. BoundaryTigard City Boundary ����������� • ��1�� x,:11: i�lllll 1111/111/1 ►,!iTaxlot Boundary 11 nil ;::1111�� ■1111111111 1 `■�� �11� -Mumma1111�+� �Illlillllllli �����r►� G JIB ■►r■11. Iliillll��� , ►11111 Iilil 1 1 lifill 11 1 11 11111 �i�W/40-11 �► �`��1 . ��IIIiI 1/I.■ ,'"' '� moi► ''� �'�' : k — ..Nil= .. r1■■■► A� DURHAM FACILITY PLAN DISTRICT -SCHEDULE OF TASKS AND RESPONSIBILITIES TASKS& MILESTONES LEAD PARTY IJUN JUL AUG SEP OCT NOV DEC JAN Initial Chapter Formation/Scoping and Discussion Coordination Meetings City of Tigard Preparation of chapter concepts and proposals City of Tigard Neighborhood Listening Session (optional) Clean Water Services Delivery of Initial Draft Scope and Chapter Structure* City of Tigard Develop Code Language Coordination Meetings City of Tigard Internal Staff Review Draft City of Tigard Public Review Draft City of Tigard Neighborhood Meeting to Present Draft Clean Water Services Completion of Mutually Acceptable Draft City of Tigard Approval of Mutually Acceptable Draft by CWS* Clean Water Services Follow-Up City of Tigard Proposed Draft&Planning Commission Preparation of Proposed Draft City of Tigard Notice of Hearing City of Tigard Planning Commission Workshop(s)&Public Hearing(s)* City of Tigard Follow-Up City of Tigard Recommended Draft&City Council Preparation of Recommended Draft City of Tigard City Council Workshop(s)&Public Hearing(s)* City of Tigard Follow-Up City of Tigard M * Project Milestones Gam. **All dates are aspirational and approximate timeframes for completion. Tasks may be completed in shorter or longer timeframes as a result the collaborative process a. between parties or the roquirremnts of the legislative process. Exhibit C CWS Plan District Project DRAFT-Scope and Budget Hours Cost Task 1. Initial chapter form/scoping and discussion 215 $7,397 meetings review drafts Task 2. Develop code language 244 $8,191 meetings internal staff draft public review draft Task 3. Planning Commission, Proposed Draft 150 $5,288 preparation two meetings follow-up Task 4. City Council, Recommended Draft 158 $5,576 preparation two meetings follow-up Total = 767 $26,452